State v. Kindall

1
NOT DESIGNATED FOR PUBLICATION

No. 120,206

IN THE COURT OF APPEALS OF THE STATE OF KANSAS

STATE OF KANSAS,
Appellee,

v.

GAELAN KERMIT KINDALL,
Appellant.


MEMORANDUM OPINION

Appeal from Norton District Court; PRESTON PRATT, judge. Opinion filed November 22, 2019.
Affirmed.

Heather Cessna, of Kansas Appellate Defender Office, for appellant.

Jodi Litfin, assistant solicitor general, and Derek Schmidt, attorney general, for appellee.

Before HILL, P.J., MALONE and POWELL, JJ.

PER CURIAM: Gaelan Kermit Kindall appeals the district court's revocation of his
probation and imposition of his underlying prison sentence, claiming the district court
abused its discretion by not reinstating his probation. For reasons more fully explained
below, we disagree with Kindall and affirm the district court.

FACTUAL AND PROCEDURAL BACKGROUND

Pursuant to a plea agreement with the State, Kindall pled guilty to one count of
aggravated assault. In accordance with the plea agreement, the district court sentenced
2
Kindall to 24 months' imprisonment with 12 months' postrelease supervision but placed
him on probation from that sentence for 24 months.

Several months into his probationary period, Kindall admitted to violating his
probation and, as a consequence, accepted a voluntary intermediate sanction of two days
in jail. A few months later the State sought to revoke Kindall's probation, alleging that
Kindall had violated the terms and conditions of his probation by committing battery
against a law enforcement officer, failing to maintain employment, consuming or
possessing alcohol or testing positive for alcohol on 17 occasions, and failing to comply
with outpatient substance abuse treatment.

At the probation violation hearing, Kindall stipulated to the probation violations,
except for the commission of a new offense. Based on that stipulation, the district court
found Kindall had violated the terms and conditions of his probation.

The State then presented evidence to support its contention that Kindall's
probation should be revoked by calling Kindall's probation officer, Ray Dreher, to testify.
According to this testimony, within a week of beginning probation, Kindall began to
consume alcohol. Kindall was required to submit to a drug and alcohol evaluation which
subsequently recommended substance abuse services. But Kindall had problems with
treatment and often relapsed, prompting a requirement that he sign a behavior contract.
Ultimately, Kindall was unsuccessfully terminated from treatment. In light of Kindall's
failure at treatment, Dreher believed Kindall would not change his behaviors because "he
feels that as an adult over the age of 21, he should be able to drink and engage in those
behaviors, regardless." Dreher believed inpatient treatment was the only program that
could help Kindall successfully complete probation, but it was unlikely Kindall would be
accepted because the inpatient treatment program focused on drug addiction rather than
alcohol addiction.

3
Kindall admitted to being an alcoholic since the age of 17 and claimed that
attending outpatient treatment was difficult because it was hard to drive to Hays from
Oberlin with a car that overheats. While he understood the seriousness of his crimes and
accepted responsibility for them, Kindall testified his substance abuse treatment was not a
serious opportunity for treatment but was just "shooting the breeze" for an hour each
week. Kindall did not believe there were any opportunities available for him to get better.

The State asked the district court to revoke Kindall's probation without an
intermediate sanction by finding that the public's safety would be jeopardized and
Kindall's welfare would not be served by continued probation. Kindall asked the district
court for a 180-day sanction and for reinstatement to probation.

The district court revoked Kindall's probation and ordered Kindall to serve his
underlying prison sentence. The district court stated:

"My finding, Mr. Kindall, is that the safety of members of the public will be
jeopardized if you are granted probation. I'm also finding that granting you probation
again will not serve your welfare. The reason for that is, about your welfare, why I don't
think giving you probation again will serve your welfare is you obviously have a very
severe alcohol problem. You've been granted opportunities to try to get over that alcohol
problem. You still have that alcohol problem.

"Now, you said there are barriers that have been put in place to getting . . . your
outpatient treatment . . . . However, if granted probation, I don't see how things would
change, other than what they've already been.

. . . .

"So if you're granted probation, I don't see where that would serve your welfare
because it's not giving you anything that hasn't already been provided.

4
The other issue is safety of members of the public would be jeopardized if you
continued on probation. My reasoning there, Mr. Kindall, is that the crime in Decatur
County was criminal discharge of a firearm. If I remember correctly, you were pretty
intoxicated when that happened, and you were within the city limits and fired a gun out
your back door. It struck a house and actually went through a wall and lodged in a closet
door of an occupied house. Like you say, nobody was injured in that, but it was a very
serious situation, and you were under the influence of alcohol at the time.

"While you were on bond from that case, then you committed the crime in this
case, which was threatening your parents with a knife. Again, it was while under the
influence of alcohol. It seems to be the pattern, Mr. Kindall [and] I don't think you would
be doing those things if you had a clear mind, but you're under the influence of alcohol
and you do those things. You've obviously got a severe alcohol addiction. You're going to
continue to use alcohol, which has been the pattern that you've shown so far.

"And so my finding is, if you continue to be on probation, members of the public
are in jeopardy because I can't trust that you're going to use good judgment. Your past
behavior shows me you will continue to use alcohol, and when using alcohol, you make
bad decisions, such as firing a gun that strikes an occupied house, or threatening your
parents with a knife. So I do find that members of the public will be jeopardized if you
are granted probation."

Kindall timely appeals.

DID THE DISTRICT COURT ABUSE ITS DISCRETION BY REVOKING KINDALL'S PROBATION?

Kindall argues the district court abused its discretion by revoking his probation.
He claims that because his underlying crime and the probation violations were related to
his alcoholism, continued probation would have given him the opportunity for further
treatment. The State counters that the district court considered Kindall's individual
circumstances when determining that an intermediate sanction would not serve Kindall's
welfare and would jeopardize public safety.
5
Once a probation violation is established, the disposition of the case lies within the
sound discretion of the district court, so long as that discretion falls within the parameters
of K.S.A. 2018 Supp. 22-3716. See State v. Skolaut, 286 Kan. 219, 227-28, 182 P.3d
1231 (2008). Judicial discretion is abused if the action is (1) based on an error law; (2)
based on an error of fact; or (3) one where no reasonable person would take the view
adopted by the district court. State v. Stovall, 298 Kan. 362, 370, 312 P.3d 1271 (2013).
The burden is on the defendant to establish an abuse of discretion. See State v. Anderson,
291 Kan. 849, 855, 249 P.3d 425 (2011). Whether the district court set forth
particularized reasons to satisfy K.S.A. 2018 Supp. 22-3716(c)(9)(A) "is a question of
law over which an appellate court exercises unlimited review. See State v. McFeeters, 52
Kan. App. 2d 45, 48-49, 362 P.3d 603 (2015)." State v. Fox, No. 118,019, 2018 WL
3596055, at *1 (Kan. App. 2018) (unpublished opinion).

A district court generally must impose intermediate sanctions before it can revoke
an offender's probation. State v. Huckey, 51 Kan. App. 2d 451, 454, 348 P.3d 997, rev.
denied 302 Kan. 1015 (2015). But a district court may bypass intermediate sanctions if it
finds a statutory exception exists. State v. Dooley, 308 Kan. 641, 649, 423 P.3d 469
(2018); see K.S.A. 2018 Supp. 22-3716. One such exception permits probation
revocation without imposing intermediate sanctions if "[t]he court finds and sets forth
with particularity the reasons for finding that the safety of members of the public will be
jeopardized or that the welfare of the offender will not be served by such sanction."
K.S.A. 2018 Supp. 22-3716(c)(9)(A). Sufficiently particularized findings are "'distinct
rather than general, with exactitude of detail, especially in description or stated with
attention to or concern with details.'" 308 Kan. at 652. The district court "must explicitly
address how the public's safety would be jeopardized or how the offender's welfare would
not be served by imposition of the intermediate sanctions." State v. McFeeters, 52 Kan.
App. 2d 45, 49, 362 P.3d 603 (2015).

6
Here, Kindall stipulated to his probation violations with one exception. The
district court found that because of Kindall's serious alcohol problem, the safety of the
public would be jeopardized and Kindall's welfare would not be served if Kindall were
merely given a 180-day sanction and had his probation reinstated. The district court
acknowledged that Kindall experienced barriers to treatment while on probation, such as
driving from Oberlin to Hays for outpatient treatment and not having a reliable car, but
concluded these barriers would still exist if Kindall's probation was reinstated. The
district court also found it unlikely that Kindall would be admitted for inpatient treatment.

The district court found that the safety of the public would be jeopardized by
continued probation given Kindall's actions while intoxicated. Kindall had been
convicted of firing a gun out his back door within city limits while intoxicated. The bullet
went through the wall of an occupied house and lodged in a closet door. While on bond in
that case, Kindall committed the underlying crime in the current case—threatening his
parents with a knife while intoxicated. The district court found that Kindall was
dangerous to the public when he was intoxicated and that his past behavior and own
testimony indicated he would not remain alcohol free.

Kindall argues that the district court should have given him another chance at
treatment. But the district court's particularized findings, as well as the entire record,
support its conclusion that continued probation was inappropriate here. Kindall had failed
at treatment, did not think treatment was effective, and felt he should be able to continue
to drink alcohol. Moreover, Kindall was dangerous when he was intoxicated. We have no
trouble concluding that a reasonable person could agree with the district court's decision
to revoke Kindall's probation and impose his underlying prison sentence. There was no
abuse of discretion.

Affirmed.